Ludington's Public Comment Prohibition is Unlawful

[XLFD]

At the February 22, 2016 Ludington City Council meeting, they unanimously approved of changes to their public comment rules that would change the old rules from a five minute period per person at the beginning with no restrictions on what you comment on, to a new system with two rules replacing the old one that amounted to:

1)  Splitting the five minutes into three minutes at the beginning of the meeting and two minutes at the end, per person.

2)  Restricting the initial comment to be only on agenda items

Prior to this, it was brought up for consideration two meetings previously, and whereas I voiced some acknowledgment before and at this meeting that there should be a public comment period at the end of the meeting as our other Mason County governments have, it appears that Councilor Krauch, who initiated the proposal, has put this forward as a way to try to minimize and control the discussions between the public and the public body. 

The change, however, looks to be unlawful, a view that I will detail right after we look at what happened at this meeting which made it a new rule for the Ludington City Council.

The Public Comment:  Two Acknowledge Indirectly the Right of Free Speech

Between them commenting on their issues against the West End Project the two speakers who immediately followed me during public comment offered their perspective on the prospect of the new rules proposed for public comment

Tom Tyron:  (8:00 in)... the first five minutes are going to require you to speak on agenda items.  I find that contrary to the rights of individuals to speak on anything.  I would think that this is a failed effort of restricting conversation for individuals that have issues other than what is on the agenda. 

Yes you can do it at the end of the meetings, but what, you want to reduce that to 2 or 3 minutes.  It seems like it would be more specific for someone to speak at the beginning of the meeting if they have an issue with the city.  I think if you don't allow them to speak on anything other than what is on the agenda, I think that's a problem with the whole concept of democracy, and I request that you allow anybody to speak on whatever issue they choose."

Don Fallis:  (immediately after) "I agree with what Tom Tyron has just said, that we as citizens of the city pay our taxes and have a right to speak to the council about anything.  As long as it can be on the agenda, but anything that could be non-agenda..."

February 22, 2016 Ludington City Council from Mason County District Library on Vimeo.

The City Council Votes:  Councilors Avoid Free Speech Debate

At 1:09:00 into the meeting the council takes up the issue with Councilor Krauch presenting it, saying that public comment is not the only way that citizens can communicate with the public like through phone call and E-mail.  Word has it that Krauch is the worst offender with answering his phone and responding to anything.  I have never in my many, many E-mail communications to them, received any reply from a councilor.

Krauch has said he has been to other bodies who have adopted the same policy he introduces but has yet to name them or explain how this necessarily provides a benefit to the public by restricting their range of materials to speak upon or why they can only speak up to two minutes on a matter of public policy outside of the public body's agenda.

Councilor Katie Moonbeam weighed in and offered that former Councilor (and COLDNews manager) Paul Peterson likes the idea, and she figures it was worth a try to see how it works.  Councilor Krauch denied it limiting the discussing thereafter saying once again it works in other public bodies to get the focus proper. 

Councilor Rathsack followed wanting an expansion of times to 5 minutes at the front for agenda items, and 3 at the end.  Councilor Holman was wary, but more assurance came from Krauch indicating how well it works at these other unnamed agencies.  Mayor Cox added that he thought it may make some stay for the full meeting rather than leaving after they say their piece.

Then City Manager Shay asked City Attorney Richard Wilson about the issues brought up by the public concerning democracy, freedom of speech, etc. and asked whether it was, in respect to the initial three minute period being limited to agenda items, legal to do so.

Wilson replied back.  "Certainly... what it would be is simply the person would be out of order, and that would be the response of the chair, if the comments started to wander into something that was not on the agenda.  The mayor using his discretion could gavel the person and remind him 'please keep your comment to agenda items and if you want to talk about, whatever it is you want to talk about, you'll have two extra minutes at the end of the meeting to do so'.  You're not abridging free speech by segregating the topics, and when you allow those comments to be made during the course of a meeting."

Richard Wilson's "Certainly' is Certainly in Question by Michigan Authorities

Wilson totally avoided the question posed by John Shay as to the legality of limiting the topic to agenda items, instead preferring to address what would happen if a citizen was so foolish to address something other than agenda items in their initial three minutes.  Citizens Tyron and Fallis' points were well made; the reflex of any individual with a civil-conscience, even John Shay, is to wonder about the rights of the individuals to speak on issues that are on their own agenda in front of the public body that has some power to do something about it-- even when it doesn't get placed on the body's agenda.

The answer to that legal question is not that hard to find.  The progenitor to the right is found in our federal Constitution's Bill of Right's in the First Amendment:  "Congress shall make no law... abridging (i.e. curtailing the right of) the freedom of speech...".  This has been adapted over the years, and laws have been made that curtail in some respects the right to speak freely in certain situations.  But it is the foundation of the laws that come afterwards that clarify this right.

Fast forward to 1976 when the Michigan legislature passes the Michigan Open Meetings Act and we find in MCL 15.263(5) that "  A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body."  Before this, uncodified, 'natural' law permitted such behavior as commemorated in this Norman Rockwell standard denoting the freedom of speech.

The OMA law, however, may seem to give the public body the power to establish rules that may otherwise interfere with the First Amendment rights of their citizenry by the way it is worded.  But the legislators never meant for those established rules to do so, and when it came time to interpret that OMA provision, the first to weigh in was 37 year 'eternal' Michigan Attorney General Frank Kelley (below) in an opinion clarifying the OMA the year right after it was passed. 

In Attorney General Opinion (AGO) #5183 Kelley made this legal observation: 

2. Rights of the Public to Address the Meeting

Section 3(5) provides that a person shall be permitted to address a meeting of a public body. The section further provides that public bodies may establish rules which regulate the conditions under which the public may address the meeting. These rules must be reasonable, flexible and designed to encourage public expression and not discourage or prohibit it.

The rules regulating the right of public address may include such controls as [1] the length of time any one person may be permitted to address the body, [2] the portion of the agenda set aside for public address, and [3] a requirement that persons wishing to address the public body identify themselves and make it known ahead of time that they wish to address the body in order to facilitate the planning of time allotments to various portions of the agenda.

Kelley never mentions that it is the public body's ability to control what you address being in the agenda.  Unfortunately, it does not expressly prohibit that either, other than saying such rules for comment be reasonable, flexible, and expression-encouraging. 

That same year Kelley weighed in further on this part of the OMA with AGO 5218 which says in part:  "The act does not contain a provision regulating the subject matter which may be covered by the speaker, a logical assumption may be made that the subject must relate to business that is within the public body's jurisdiction."  Concluding:  "It is, therefore, my opinion that a [public body]may not limit the subject and issues that certain persons may cover in the course of addressing the meeting".

In Michigan case law, the matter has rarely came up.  When it has, judges have used the AGOs mentioned above to help interpret this section of law, such as in LYSOGORSKI v. CHARTER TOWNSHIP BRIDGEPORT (2003), where they used it to show the plaintiff's complaint was insufficient for an OMA violation.  I have found nowhere that the OMA section is interpreted otherwise, or anywhere that refutes AGO 5218 in established case law.

Therefore, the highest authority on the subject indicates that the Ludington City Council, or any other Michigan public body, can not limit your public comment to agenda items in your course of making those comments.  Certainly, it does abridge your freedom of speech without any compelling interest to the city, other than silencing what you can comment on (except for two minutes after the meeting's business has been held). 

As if to emphasize that quelling effect, listen to my public comment at about 3:00 into the meeting, where I cover five different topics, all relating to highly relevant and timely Ludington public policy issues, and yet all that would lie outside of the agenda as written, so that I would have to condense it even further into two minutes. 

The city council has their own agenda which they desire to shove down your throat; each citizen has their own agenda, they deserve the right to publicly declare them to the usual agency that interferes with it.

[jfc123]

Possibly he was sent there to publically warn them? People in power are very aware of what is going on in Ludington. I don't know him to be able to tell what side he is on? I love the "on the record of his comments", means it is not just you making these talking points and me behind the scene but others are stepping up! This is my hope!

[XLFD]

Rowley was sent there to cover the meeting for his next morning's newscast, and I believe he got caught up in the moment and decided to offer his comment.  He is a new transplant to the area, and isn't yet familiar with the local politics that keep others from doing what he does. 

With conversations I have had with long-term personnel from the two Ludington area radio stations, I have sensed a measure of camaraderie and got the impression that they know a lot more than they can report to the listeners, without getting negatively affected by our powerful ruling clique striking back.

[jfc123]

Just watched a segment on the local news here in the Detroit market about how a family in Flint is trying to cope by boiling water, taking meds, helping the elderly. If that city had the chance to prevent this mess or rebuild their city owned marinas what would they choose now? Makes one wonder.......only time will tell? The sand will not filter anything, its sand and has no filter period! Even what was stated, like lead copper or mercury, her comment makes my blood boil! His response will have him fired. Referring to the stupid col council and the comments made by the expendables. The fish gust and mercury, really? Guess they need to die where the col council tells them, why do they not go to the wwtp? Does this plants discharge REALLY have a permit or is it just the WTP? Why does the COL not tell all the transients about the EXCESSIVE mercury in fish here? Can this be miss diagnosed as lead? Hmmm........

[AQUAMAN]

You know, this really stinks on the part of the Ludington City Council, for once, and for all. Now they want to discourage and require that no one that offers public comments be allowed to unless it's under their strict and now legal requirements. That is JUST WRONG, and most probably, totally ILLEGAL! Unless of course some warped attorney/s say it's just so, from Manistee, so, you just have to shut up, and sit down, and put up with it, unless of course you want to fight it in court. So you do, and you win, then the CA Wilson will just pretend it aint so, and continue to rant and rave that you, as the public, lost anyhow. That after a Judge declared that the COL LOST! We have what I would call a much bigger problem than just the window dressing that the LDN/MCP want to irreverently and wrongfully post to the public. We have a complete and ongoing conspiracy to thwart Constitutional Rights and Americanism at it's core. That which Ludington citizens have to oppose, or just live in Russia or Cuba for the rest of our lives. Which is it? Do we live under these appointed civil servants tyranny? Or do we as honest law abiding citizens REBEL? We do have rights people, do you not care anymore? Do you not see thru these hired down-state CROOKS at Long Last? If not, then all is lost, and you can easily live in Ludington as the Cubans and Russians you want to live as. As for me, I CHOOSE NOT!!!

[jfc123]

I received an email response from a government official today, funny thing was that it included a link to this site when I had the discussion going about the DEQ report requested by the col. I did not share that with them or mention it. Actually it came back from whoever they contacted in Ludington government to answer some things. I found that very interesting and encouraging! Thank you Xlfd for creating this website, seems it is making a difference! Ludington lives do matter! COL council needs to take action soon, finally be proactive not suppressive! I feel a change coming!

[XLFD]

Our city officials are among my most loyal readers, though they rarely like what they see.  It's amusing and ironic that they are linking to our articles to make their case to the State.  Perhaps you can share it with me by sending a message if you don't want to share it more widely.

Thanks for letting me know that we are making a difference here, I do get some unexpected e-mails from those who have been positively helped from our bringing more awareness to the public of a variety of issues.  It's a great bonus for doing what you think and know is the right thing to do.